Maryland High Court Upholds Marriage Ban

The Maryland Court of Appeals upheld the state's ban on gay marriage in a decision announced this morning. The decision reverses a lower court ruling by Baltimore Circuit Court Judge M. Brooke Murdock, who held in January that the 1973 law banning same-sex marriage is discriminatory and "cannot withstand constitutional challenge."

The court decision cannot be appealed to the U.S. Supreme Court.

The lawsuit was filed by the ACLU on behalf of nineteen Maryland gay and lesbians. ACLU attorney Ken Choe argued that the marriage ban violated the state's constitution and "no constitutionally sufficient justification" for denying the plaintants and their children the rights and responsibilities of marriage.

"We will be pushing for full, legal equality in the Maryland General Assembly," said Dan Furmansky, executive director of Equality Maryland. "This is a social justice struggle. Eventually, Maryland will have civil marriage equality for same-sex couples. It's inevitable."

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Let me see if I have this correct: A liberal "Blue" state teeming with East Coast "activist judges" (you know the type) and with "equal protection" tests far more friendly to overturning laws still reaches the same type of conclusion the Indiana Court of Appeals did in the Morrison case in which it upheld Indana's current law limiting marriage to opposite sex couples.

Yet supporters of SJR7, Indiana's proposed constitutional amendment banning same-sex marriage are all in a frenzy saying the sky will surely fall, and soon, if our General Assembly doesn't hurry up and pass it. Everyone in Indiana even remotely familiar with the situation here knows that all of this hand-wringing is just a thinly veiled subterfuge for getting this amendment on the 2008 Presidential ballot, to bring out Republican base voters who aren't all that happy with George W's brand of conservatism these days.

Maryland to Indiana: Take a deep breath, folks, our sky is still here....and it's even more certain that yours is inact.

I think it's only a matter of time before Maryland crumbles though and allows same-sex civil marriage via the legislature. I don't have any insider knowledge or anything - just that looking to their neighbors in surrounding states and the general direction the country is headed...

I’m not familiar with the intricacies of the Maryland constitution, but I’m going to offer some thoughts on point 3 it relates to the United States constitution (and maybe some of the others in future posts, time permitting).

The Supreme Court has stated that fundamental rights are “those liberties that are deeply rooted in this Nation’s history and tradition,” and have repeatedly found that marriage is included in the list of fundamental rights. Opponents to marriage equality argue correctly that same sex marriage has never been apart of our nation’s history or tradition.

Marriage itself, has. Herein lies the distinction. Same sex couples are not asking for the right of some special same sex marriage, they are asking for the right to be included in the preexisting institution of marriage, pure and simple.

The way that a right is defined plays a huge role in determing if its is in fact a legitimate right or no. The more broadly defined, the more likely it is to fit within tradition, thus being upheld, and vice versa.

Imagine if this ‘most specific’ methodology had been applied in Loving v. Virginia, which struck down the state’s ban on interracial marriage. Had the Lovings claimed that the right to a mixed race marriage was rooted in our nation’s history and tradition, they would have been instructed to review the long history of America’s antimiscegenation laws. The first antimiscegenation law in North America was enacted in Virginia in 1691. Thirty one states maintained such laws by 1945; sixteen states still held them by the time Loving was decided.

Further, in Dred Scott v. Sandford, Chief Justice Taney cited the long standing antimiscegenation laws in his decision to deny citizenship to blacks, stating, “intermarriages between white persons and negroes or mulattoes were regarded as unnatural and immoral, and punished as crimes” The Lovings’ claim was upheld, because they called upon the more general right to marry, rather than the specific right to marry someone of a different race, which clearly went against the longstanding traditions of the United States.

The Loving decision provides an important comparison for those who support same sex marriage. First it establishes that one of the most basic decisions in family life is the decision of whom one chooses to marry. It shows that the right to marry is not limited to longstanding legal or cultural traditions of exclusion. It also provides a framework by which the right of gays to marry should be addressed.

Just as the Lovings petitioned for, and the courts recognized, the fundamental right to marry, rather than the fundamental right to marry someone of a different race, so too should courts recognize that gays seek the right to marry in the broadest sense, rather than the specific right to marry someone of the same sex.

All of that being said, though I would have welcomed a decision from the court that recognized the equality of gay families, I respect their restraint. I have said before that I believe decisions involving divisive social issues such as gay equality are better decided by the legislature rather than judges, even if it means the path to equality is slower. I believe the legislature lends an air of legitimacy that the judiciary is largely lost.